Countless foreigners find themselves eligible for a U.S. green card but are unable to complete the application process due to unlawful presence in the United States. Leaving the U.S. for a consular interview may trigger a bar to reentry due to the illegal time spent in the country. The I-601A waiver (also recognized as a “provisional waiver” or “Perdon”) offers a solution for many individuals with this problem.
How Can An I-601A Waiver Help An Applicant?
The U.S. government may reject an application for lawful permanent residence (green card) for several reasons such as:
- Crimes
- Fraud
- Immigration violations
- Health problems and
- Public charges
All these reasons are identified as grounds for inadmissibility. However, sometimes waivers are available. A waiver can help you qualify for a green card despite the problems mentioned above. The I-601A waiver confronts the main reason which is “unlawful presence.” People who have accumulated unlawful presence may only be able to obtain a green card through the use of the unlawful presence waiver.
Getting a Grasp of the Unlawful Presence Bars
Persons who have accrued a certain amount of unlawful presence in the United States will have a more complicated process obtaining a U.S. green card.
How Unlawful Presence Is Triggered
According to the U.S. Immigration Law, unlawful presence is the period when you are in the U.S. without authorization, paroled, or when you are not in a “period of stay authorized by the Secretary.” You have amassed unlawful presence if you:
- Entered the U.S. without being admitted or paroled;
- Overstayed an otherwise authorized period of stay; or
- Violated the terms of a nonimmigrant visa status
Anyone who traveled into the U.S. without authorization is unlawfully present in the country. Similarly, anyone who is out of status but remains physically present in the U.S. is accumulating unlawful presence. In general, the U.S. issues a Form I-94, Arrival/Departure Record to foreigners who entered legally which is imperative for you to review this document for expiration of your immigration status.
There are Certain Bars To Reentry For Unlawful Presence
Unlawful presence has some serious consequences in the long run. You will be barred from reentering the U.S. for:
- 3 years, if you depart the United States after having accrued more than 180 days but less than 1 year of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(I));
- 10 years, if you depart the United States after having accrued one year or more of unlawful presence during a single stay (INA section 212(a)(9)(B)(i)(II)); or
- Permanently, if you re enter or try to reenter the United States without being admitted or paroled after having accrued more than one year of unlawful presence in the aggregate during one or more stays in the United States.
Certain individuals may be able to apply for a green card even after an unlawful presence inside the United States. This privilege is generally limited to immediate relatives (spouses, parents, and unmarried children under age 21) of U.S. citizens. Immediate relatives may adjust their status to permanent resident status inside the U.S. even after an overstay. Before adjusting your status visit an immigration attorney to help you weigh your options.
The I-601A Waiver Has some Exceptions
U.S. immigration law provides some exceptions to noncitizens who have accrued unlawful presence. For example:
- Asylees - Time while a non-important asylum application is still pending is not counted as unlawful presence
- Minors - Children under the age of 18 do not accrue unlawful presence.
- Family Unity Beneficiaries - People with protection under the Family Unity program, as provided under section 301 of the Immigration Act of 1990, do not accrue unlawful presence while that protection is in effect
Other potential exceptions that can be discussed with an immigration lawyer.
Can An Immigration Attorney Help With the I-601A Waiver?
Anyone desiring to apply for an unlawful presence waiver must file Form I-601A, Application for Provisional Unlawful Presence Waiver. Applying for an I-601A, can be quite complicated and an Immigration Law expert can help you. If you find yourself needing to apply for a waiver feel free to call Gambacorta Law Office at 847 443 9303 and our team of attorneys will be glad to help you.
